Fighting ignorance since 1973.(It's taking longer than we thought.)

When does it become OK to dig up a human body?

May 8, 2015

Dear Cecil:

How old do human remains, graves, etc., have to be before digging them up is OK? If I go to a cemetery and dig somebody's remains up, it will undoubtedly make front-page news, especially if I put what I find on display on my mantel. However, museums are filled with really old dead people and their artifacts. Is it just that these people's relatives are no longer around?

John E. Riley, Berkeley Heights, New Jersey

Illustration by Slug Signorino

Cecil replies:

I’m tempted to ask what prompted this inquiry, but I’ll leave you and your god to resolve that between yourselves. One must concede, though: at this point in human existence, with more than 100 billion dead people in the ground (or lying around at varying levels of decomposition somewhere, anyway), the odds of Spot digging a hole in the backyard and turning up one of them aren’t insignificant. As it’s important to be prepared for these sorts of situations, what follows here are your basic guidelines for grave-robbing.

It’s not a total free-for-all. The Native American Graves Protection and Repatriation (and Desperate Attempt to Make Up for Previous Shitty Policies Regarding Native Americans) Act of 1990 requires any remains or artifacts be returned to the appropriate descendants. Perhaps the most famous related case so far was the 1996 discovery in Washington State of Kennewick Man, a near-complete human skeleton roughly 10,000 years old — the sort of find that gets archaeologists fogging up their microscope lenses. Despite uncertainty about KM’s ethnic origins, a group of Native American tribes claimed him as their own and wanted him reburied under the 1990 law, while scientists, seeing him as a priceless research subject, tried to stop the Army Corps of Engineers (who had jurisdiction) from turning the bones over. After the legal dust settled, no one was all that happy: a 2004 ruling held that the remains weren’t provably Native American, so no reburial, and the Corps has allowed only limited scientific testing in the years since.

But that’s as far as federal law goes. (Well, plus prohibitions against disturbing a crime scene, always a consideration in cases of unattended death.) Everything else gets delegated to the states, where things get a little hazier. There’s a common-law principle in play under which it’s not OK to disturb a dead body without proper authorization, although really that mainly applies to bodies interred in modern cemeteries with all paperwork accounted for. Seventeen states explicitly prohibit abuse of a corpse, which generally encompasses things that would offend hypothetical loved ones.

True, the possession and sale of human remains by private individuals is legal in all but three states — eBay, unsurprisingly, hosts a lively trade in such things, which can fetch hundreds or sometimes thousands depending on the body part. This, however, doesn’t mean it would be wise for just anyone to take some femur they found (even on their own property) and slap a Buy It Now price on it.

If you’re a part of a museum or other organization that’s official enough to claim the aforementioned proper authorization, though, the random dead bodies out there not covered by the repatriation act are more or less up for grabs. According to the Ohio Archaeological Council, the general idea when discovering human remains is to determine whether they belong to anybody still alive. This could be a relative or heir, or possibly a contemporary group with a cultural affinity. There must be an attempt to contact the relevant parties, which isn’t always simple even when Native Americans aren’t involved; countless controversies have ensued over millennia-old bones of unclear provenance. (The self-proclaimed chief of modern-day British druids, King Arthur Pendragon — formerly known as John Rothwell — has threatened to chain himself to Stonehenge if the bones found there are displayed). Finally, the general idea is to avoid activities seeming “exploitative or insensitive.” But that’s about it. Antigone (you remember — she was determined to get her traitorous but dead brother properly interred) would be appalled.

As for rules about how long you’re required to leave bodies undisturbed: there aren’t any. Excavations are already going on at certain World War I battlegrounds where the slain were just a couple of generations older than many now in the prime of life, e.g. me.

The more modern the site, of course, the more controversial the remains. Last year, for instance, 7,930 unidentified human fragments, most the size of “a Tic Tac,” as one medical examiner memorably put it, were transferred to the National September 11 Memorial and Museum, to be placed at bedrock level of what organizers had called “the sacred ground of the site.” As respectful as that might sound to some, to many of the families of the deceased it meant their loved ones’ remains were being stored away in a museum basement. Some victims’ families had earlier protested against World Trade Center dust and debris being moved to a Staten Island landfill, arguing that it certainly contained human remains as well. I predict many more lawsuits before we finally lay this issue to rest. And if the police find anything weird in your house? Blame the dog.